Government's law officers are probably responsible for half the Raja mess

While Gopal Subramaniam argued on behalf of the PM, he had also filed an affidavit saying the PM knew what Raja was doing!

The government has probably done well to ask Solicitor General Gopal Subramaniam not to represent the Prime Minister in the Supreme Court when the Subramanian Swamy case comes up again next week. For while there can be a debate as to whether the Supreme Court should have asked the PM to explain his silence on Swamy’s request to be allowed to prosecute the then telecom minister A Raja, it does appear Subramaniam goofed up by telling the Court that Swamy’s letter had been dealt with on many occasions—when Swamy said he had received just one letter saying his application was premature, the Court then asked Subramaniam to put down his statements in an affidavit.

What’s worse is the affidavit he filed in the Court a few days before Raja was asked to go. While the PM’s defence has all along been that Raja had acted without his consent, indeed against his wishes, the affidavit (para 94) says the PM’s advice was never ignored. “It has further been contended that the advice of the Hon’ble Prime Minister has been disregarded. This is again wholly incorrect. … Thus, not only was there no difference of opinion with the Hon’ble Prime Minister, his office was also kept fully informed of all decisions.” Hardly surprising then, that when a top minister had an off-record briefing on the Court’s statements on the Prime Minister, he said he wouldn’t be having this briefing if Subramaniam had done his job properly.

The question of course is whether the government is jumping from the frying pan into the fire since the replacement, attorney general Goolam Vahanvati, has also been arguing the same line and defending Raja all this while—so, any smart attorney will probably trap him on what he’s said before. Vahanvati defended Raja’s line in the Delhi High Court when STel challenged Raja’s policy, and lost the case in July 2009—he also challenged the high court decision unsuccessfully before the Supreme Court. (Indeed, on December 26, 2007, Raja wrote a letter to the PM saying he’d met Pranab Mukherjee to explain the case to him and even called in Goolam Vahanvati to explain the legal position.)

More important, it also appears the law officers gave incorrect advice and, in that sense, helped Raja justify his actions. Opinion, it also appears, they shouldn’t have even been giving since the law minister had clearly said matters should be brought before the Empowered Group of Ministers (EGoM). A look at some of the specifics:

* Para 92 of the affidavit filed in the Supreme Court says, “the Ministry of Law and Justice has not given any advice regarding the policy in force on grant of UAS licences or the first-come-first serve issue”. Well, para 86 of the same affidavit, while talking of Raja’s press release of no cap and first-come-first-serve of January 10, 2008, says, “the said press release was issued after obtaining legal advice”!

* Para 88 goes on to say there was no preponement of any cut off date—this is the big illegality Raja has been accused of since, while applications were to be accepted till October 1, 2007, his press release said only those received till September 25 would be accepted. So here’s what the affidavit says: “there was no preponement of any cut-off date. It was rather a case of batch-wise processing of applications. No application was rejected because it was received after 25.09.2007—its processing was merely postponed.”

This is clearly being economical with the truth. The affidavit didn’t say the ministry had approached the Trai since it didn’t have enough spectrum to give to the post-September 25 applications and that the Trai recommended a cap be put so that more licences didn’t have to be given.

It also contradicts something said in para 83, that the government simply didn’t have enough spectrum to give to all applicants … “therefore, it was not even theoretically possible to accommodate all the applicants ...”

So why tell the Court the government will process the other applications as well?

There is then the matter of whether the law officers even had the authority to give the telecom ministry the opinions it did. On November 1, 2007, the law secretary put up a note to the law minister on the telecom ministry’s request on how to deal with the 575 applications it had got for licences. The law secretary said the questions posed were too broad to be of any use; the file then went to the law minister who said the matter should go to the EGoM. Given that Raja ensured he didn’t go to the EGoM, how were opinions even given?

While dismissing Vahanvati’s argument on July 1, 2009, the Delhi High Court had pointed out that while Raja said he had accepted the Trai recommendation that there should be no cap on the number of service providers, by amending the cut-off date, he had actually placed a cap. That is, the ministry was violating the Trai Act, which says any changes made have to be referred back to Trai—when Vahanvati was explaining the legal position to Pranab Mukherjee on December 26, 2007, didn’t he realise this? Didn’t Subramaniam realise this while clearing various affidavits for the ministry? Both, after all, have been arguing telecom cases for 10-15 years. By the way, even last week’s affidavit in the Court carries on saying the Trai recommendation of no cap was accepted by the ministry—the law officers didn’t even have the honesty to tell the Court that the Delhi High Court, and even the Court itself, had previously held that the Trai policy had not been accepted.

It’s time the government realised its lawyers are as fallible as others. So the next time around, it should stop parading the attorney general or the solicitor general’s opinion as God’s own truth.